Deputy Attorney General Rod J. Rosenstein’s appointment of former FBI director Robert Mueller to act as special counsel investigating Russian meddling into the 2016 election is an unexpected development in the issue that’s roiled the early days of Donald Trump’s administration. While it’s also a relatively unusual step in recent history, we do know one thing about it: The odds are good that it will take a while.
The Fix walked through a number of times that outside investigations have been launched in American history. But before we get too far down the path of exploring how long those took, it’s worth clarifying what exactly we’re talking about.
In 2013, the Congressional Research Service outlined the difference between three types of investigations: independent counsels, special prosecutors and special counsel. Mueller is a “special counsel,” meaning that he operates independent of the Justice Department but with the powers of a U.S. Attorney to prosecute any crimes he uncovers. Mueller doesn’t need to report what he’s investigating back to the attorney general (or the deputy attorney general, in this case, since Attorney General Jeff Sessions recused himself from the Russia inquiry), though he is constrained to investigate only what was identified by the attorney general. The CRS notes, though, that “the Attorney General must be notified concerning significant actions that the special counsel is to take, and may countermand any proposed action by the special counsel” — meaning that the attorney general could, for example, nix a prosecution.
“Special prosecutors” and “independent counsels” are positions that are independent of the Justice Department and of Congress. Such positions are similar to those created under the Ethics in Government Act (EGA), a law passed in 1978 that expired in 1999. Under the stipulations of that law, the attorney general made recommendations to a three-judge panel for the appointment of a special prosecutor, who then had full independence. Many of the special prosecutions included in our assessment of how long the Russia inquiry will last were appointed during the period that the EGA was in effect.
In the post-EGA era, there have been two prior special counsels. The first was appointed by Attorney General Janet Reno in 1999 to investigate the events at the compound in Waco, Tex., in 1993. The second was appointed to investigate the leak of the identity of CIA agent Valerie Plame in 2003. The person identifying the special counsel in that case was a familiar name: James Comey, then himself deputy attorney general.
Of course, we must mention special prosecutor Archibald Cox, whose appointment — and subsequent firing by President Richard M. Nixon — was the inspiration for the EGA (and a touchpoint for any number of stories following the firing of Comey by Trump last week). Cox’s tenure as special prosecutor was only about 150 days long, after which point “the office of the Special Prosecution Force [was] abolished,” in the words of Nixon’s White House. Hence the push for an outside panel of judges to control the process.
The longest, by far, was the investigation into former Housing and Urban Development secretary Henry Cisneros. That investigation outlasted Cisneros’ 1999 plea deal and subsequent 2001 pardoning by President Bill Clinton by five years. On average, the length of an investigation was about 1,154 days. Excluding Cisneros’s, the average was about 911 from appointment to the final report.
Meaning that, if that latter average holds, the Russia investigation might be expected to end some time in late November 2019. (The median is only 668 days, for what it’s worth.)
As the Cisneros example makes clear, though, there can be indictments and prosecutions well in advance of the end of the special prosecutor’s tenure. Consider, too, the investigation into Whitewater, that ended up with Clinton’s 1999 impeachment trial. That investigation didn’t technically end until 2002.
In other words, if you’re someone who’s antsy for a resolution to the Russia matter — say, someone in a position of power who lives in a house on Pennsylvania Avenue — the odds are good you won’t have to wait until 2019 to see how this turns out.